09.04.2026 vs Prem Lal & Others on 9 April, 2026

Himachal Pradesh High Court

Date Of Decision: 09.04.2026 vs Prem Lal & Others on 9 April, 2026

                                      2026:HHC:11870




         IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
                               RSA No. 267 of 2025
                               Date of decision: 09.04.2026.




                                                                 .
    The Government of H.P. & another                             ...Appellants.





                               Versus
    Prem Lal & others                                           ...Respondents.





    Coram:
    The Hon'ble Mr. Justice Romesh Verma, Judge.




                                        of
    Whether approved for reporting?1
    For the appellants        :       Mr.   Manish    Thakur,                  Deputy
                    rt                Advocate General.

    For the respondents           :   Mr.   Bhupinder             Singh         Ahuja,
                                      Advocate.

    Romesh Verma, Judge (Oral):

The present appeal arises out of judgment and

decree, as passed by the learned District Judge, Bilaspur,

District Bilaspur, H.P. dated 21.08.2024 in Civil Appeal No.

42/13 of 2023, whereby the appeal filed by the present

appellants has been dismissed and the judgment and

decree, as passed by the learned Civil Judge, Jhandutta,

District Bilaspur, H.P. dated 31.07.2023 in Civil Suit No.

141-1 of 2021/2018, have been affirmed.

2. Brief facts of the present case are that plaintiffs

filed a suit for decree of possession, permanent prohibitory

1
Whether reporters of Local Papers may be allowed to see the
judgment?

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injunction, mandatory injunction and in alternative sought

compensation against the defendants. It was claimed that

.

the appellants/defendants had constructed road through

the land of the plaintiffs/ respondents without consent and

permission of the plaintiffs. It was further averred that the

defendants are very influential, resourceful and clever

of
persons and are trying to grab the suit land of the plaintiffs

and are also trying to dig road, changing the nature of the
rt
suit land and also threatening to cut trees and destroy the

crops from the suit land without any right, title and

interest over the suit land.

3. It was averred that the Government notification

was duly issued for acquisition of lands of village

Dharashani, Post Office Rishikesh, Tehsil Jhandutta,

District Bilaspur, H.P. but no steps were taken to make the

payment to the affected persons. The present appellants

had allowed the said notification to lapse. The plaintiffs

requested the officials of the appellants to pay the amount

of compensation on account of utilization of the land of the

present respondents but except for making assurances, no

steps were taken by the appellants in that regard.

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4. As per plaintiff, servants and agents of the

appellants/ defendants are threatening to dig the adjacent

.

land to the road, to destroy the crops, to cut the trees and

to break stones from the suit land and to change the

nature of the suit land. Therefore, decree for possession,

permanent prohibitory and mandatory injunction was

of
sought from the learned trial Court.

5. The suit was contested by the appellants/
rt
defendants by raising preliminary objections qua the

maintainability and cause of action etc. On merits, it was

contended that the plaintiffs have got no cause of action to

file the suit and that the suit is bad for mis-joinder and

non joinder of necessary parties and having no locus

standi to file the suit as it is barred by law of limitation. It

was further averred that the plaintiffs have not approached

the Court with clean hands and suppressed material facts

from the Court.

6. On 23.10.2021, following issues came to be

framed by the learned Trial Court:-

“1. Whether the plaintiffs are entitled for relief of
possession, as prayed for? OPP

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2. Whether the plaintiffs are entitled for relief of
mandatory injunction, as prayed for? OPP

.

3. Whether the plaintiffs are entitled for relief of

injunction(s), as prayed for? OPP

4. Whether the present suit is not maintainable, as

alleged? OPD.

of

5. Whether the plaintiffs have no cause of action to file
the present suit? OPD

6. Whether the plaintiffs have not come to the court
rt with clean hands, as alleged? OPD

7. Whether the plaintiffs are estopped from filing the
present suit by their own acts, conducts, omission
and commission, as alleged? OPD

8. Whether the suit is bad for mis-joinder and non-

joinder of necessary parties, as alleged? OPD

9. Whether the defendants are entitled for relief of
special cost under Section 35-A of CPC, as alleged?

OPD

10. Whether the plaintiffs have not complied with the
mandatory provision of law i.e. Section 80 CPC, as
alleged? OPD

11. Relief.”

7. The learned Civil Judge, Jhandutta, District

Bilaspur vide its judgment and decree dated 31.07.2023

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decreed the suit of the plaintiffs/respondents and it was

ordered that the plaintiffs/respondents are entitled for

.

decree of mandatory injunction against the respondents/

defendants, whereby direction was issued to the

defendants to pay compensation to the plaintiffs along with

statutory benefits and interest etc. as per Rules and if the

of
State failed to pay the compensation to the plaintiffs, then

the plaintiffs shall be entitled for possession of the land
rt
comprised in khasra No. 573/510/336, khewat/khatoni

No. 118/119, measuring 03-01 bighas, situated in village

Dhrarshani, Post Office Rishikesh, Tehsil Jhandutta,

District Bilaspur, Himachal Pradesh.

8. Aggrieved against the judgment and decree

dated 31.07.2023, as passed by the learned trial Court, the

defendants preferred an appeal in the Court of learned

District Judge on 08.11.2023 and the learned First

Appellate Court vide its judgment and decree dated

21.08.2024 has dismissed the appeal, as preferred by the

appellants/ defendants.

9. Still feeling aggrieved, the appellants/

defendants has filed the present Regular Second Appeal.

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10. It is contended by Mr. Manish Thakur, learned

Deputy Advocate General appearing for the State that the

.

impugned judgments and decrees, as passed by the

learned courts below are erroneous and are liable to be

quashed and set aside. He submits that the suit, as filed

by the plaintiffs/respondents is not maintainable, since the

of
claim as put forth by the plaintiffs/respondents is highly

belated and the plaintiffs/respondents are not entitled for
rt
any compensation on account of the fact that the road was

constructed on the implied and express consent of the

present respondents.

11. On the other hand, learned counsel for the

respondents has defended the judgments and decrees, as

passed by the learned Courts below and has submitted

that as per the mandate of the Apex Court, no person can

be deprived of his property without adopting due process of

law.

12. I have heard the learned counsel for the parties

and have also gone through the material available on the

case file.

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13. With the consent of the parties, the case is

finally heard at admission stage.

.

14. The Court of the first instance as also the First

Appellate Court have concurrently held that the land of the

plaintiffs was utilized for construction of Auhar-Kohina

road without payment of compensation to them. No dispute

of
has been raised as to such findings of fact. It has only

been contended on behalf of the defendants that the suit
rt
filed by the plaintiffs is highly time barred. In alternative,

it was pleaded that plaintiffs having remained silent for a

long period were estopped from raising the claim. Principle

of acquiescence has also been sought against them on the

premise that the plaintiffs were aware about the

construction of road and the road was constructed with

their implied consent and now they cannot turn around to

raise objections against the construction of road.

15. Defendants are constituents of a welfare State. It

is well settled that the welfare State cannot claim adverse

possession against its citizens. Thus, the suit on the basis

of title cannot be said to be time barred, which right could

only be defeated by proof of perfection of title by way of

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adverse possession by the other. Being the owners of the

suit land, the plaintiffs/respondents are well within their

.

right to file a suit for possession and injunction since the

suit land was utilized by the State for construction of the

road without adopting due process of law including the

payment of amount of compensation.

of

16. Admittedly, the appellants/defendants were not

in possession of any document to show that the plaintiffs
rt
had consented for construction of road through their

lands. When specifically asked this question from the

learned Deputy Advocate General, he is unable to answer

the query of the Court in this regard. No document has

been appended with the present proceedings which may

demonstrate that the present respondents have orally

consented for the construction of the road in question.

17. The Hon’ble Apex Court in Vidya Devi vs. State of

Himachal Pradesh & others (2020) 2 SCC 569 has held that

no person can be forcibly dispossessed of his property without

any legal sanction and without following the due process of law

and depriving her payment of just and fair compensation. The

State being a welfare State governed by the rule of law cannot

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arrogate to itself a status beyond what is provided by the

Constitution. The Court has held as follows:

“12. We have heard learned Counsel for the parties and

.

perused the record. 12.1. The Appellant was forcibly
expropriated of her property in 1967, when the right to
property was a fundamental right guaranteed by Article

31 in Part III of the Constitution. Vidaya Devi vs The State
Of Himachal Pradesh on 8 January, 2020 Article 31

of
guaranteed the right to private property 1, which could not
be deprived without due process of law and upon just and
fair compensation.

rt
12.2. The right to property ceased to be a fundamental
right by the Constitution (Forty Fourth Amendment) Act,

1978, however, it continued to be a human right 2 in a
welfare State, and a Constitutional right under Article 300
A of the Constitution. Article 300 A provides that no

person shall be deprived of his property save by authority
of law. The State cannot dispossess a citizen of his
property except in accordance with the procedure

established by law. The obligation to pay compensation,

though not expressly included in Article 300 A, can be
inferred in that Article The State of West Bengal v. Subodh

Gopal Bose and Ors. AIR 1954 SC 92. 2 Tukaram Kana
Joshi & Ors. v. M.I.D.C. & Ors. (2013) 1 SCC 353.
12.3. To forcibly dispossess a person of his private
property, without following due process of law, would be
violative of a human right, as also the constitutional right
under Article 300 A of the Constitution. Reliance is placed
on the judgment in Hindustan Petroleum Corporation Ltd.
v. Darius Shapur Chenai4, wherein this Court held that:

” 6. … Having regard to the provisions contained in
Article 300A of the Constitution, the State in

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exercise of its power of “eminent domain” may
interfere with the right of property of a person by
acquiring the same but the same must be for a

.

public purpose and reasonable compensation

therefor must be paid.” (emphasis supplied)
12.4 In N. Padmamma v. S. Ramakrishna Reddy5, this
Court held that:

“21. If the right of property is a human right as also
a constitutional right, the same cannot be taken

of
away except in accordance with law. Article 300A
of the Constitution protects such right. The
provisions of the Act seeking to divest such right,
rt keeping in view of the provisions of Article 300A of
the Constitution of India, must be strictly

construed.” (emphasis supplied) 4 (2005) 7 SCC

627.
12.5 In Delhi Airtech Services Pvt. Ltd. & Ors. v. State of

U.P. & Ors., this Court recognized the right to property as
a basic human right in the following words:

“30. It is accepted in every jurisprudence and by

different political thinkers that some amount of

property right is an indispensable safeguard
against tyranny and economic oppression of the

Government. Jefferson was of the view that liberty
cannot long subsist without the support of property.
“Property must be secured, else liberty cannot subsist”

was the opinion of John Adams. Indeed the view that
property itself is the seed bed which must be conserved if
other constitutional values are to flourish is the consensus
among political thinkers and jurists.” (emphasis supplied)
12.6 In Jilubhai Nanbhai Khachar v. State of Gujarat,7
this Court held as follows :

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“48. …In other words, Article 300A only limits the
powers of the State that no person shall be
deprived of his property save by authority of law.

.

There has to be no deprivation without any sanction

of law. Deprivation by any other mode is not
acquisition or taking possession under Article 300A.
In other words, if there is no law, there is no

deprivation.” (emphasis supplied) 10.3. In this case,
the Appellant could not have been forcibly

of
dispossessed of her property without any legal
sanction, and without following due process of law,
there is no deprivation.”

rt
12.6 In this case, the Appellant could not have been
forcibly dispossessed of her property without any legal

sanction, and without following due process of law, and
depriving her 6 (2011) 9 SCC 354. 7 (1995) Supp. 1 SCC

596. payment of just compensation, being a fundamental

right on the date of forcible dispossession in 1967.
12.8. The contention of the State that the Appellant or her
predecessors had “orally” consented to the acquisition is

completely baseless. We find complete lack of authority

and legal sanction in compulsorily divesting the Appellant
of her property by the State.

12.9. In a democratic polity governed by the rule of law,
the State could not have deprived a citizen of their
property without the sanction of law. Reliance is placed
on the judgment of this Court in Tukaram Kana Joshi &
Ors. v. M.I.D.C. & Ors. wherein it was held that the State
must comply with the procedure for acquisition,
requisition, or any other permissible statutory mode. The
State being a welfare State governed by the rule of law
cannot arrogate to itself a status beyond what is provided
by the Constitution.

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12.10. This Court in State of Haryana v. Mukesh Kumar
held that the right to property is now considered to be not
only a constitutional or statutory right, but also a human

.

right. 8 (2013) 1 SCC 353. Human rights have been

considered in the realm of individual rights such as right
to shelter, livelihood, health, employment, etc. Human
rights have gained a multi− faceted dimension.

12.11. We are surprised by the plea taken by the State
before the High Court, that since it has been in continuous

of
possession of the land for over 42 years, it would
tantamount to “adverse” possession. The State being a
welfare State, cannot be permitted to take the plea of
rt
adverse possession, which allows a trespasser i.e. a
person guilty of a tort, or even a crime, to gain legal title

over such property for over 12 years. The State cannot be
permitted to perfect its title over the land by invoking the
doctrine of adverse possession to grab the property of its

own citizens, as has been done in the present case.
12.12. The contention advanced by the State of delay and
laches of the Appellant in moving the Court is also liable

to be rejected. Delay and laches cannot be raised in a

case of a continuing cause of action, or if the
circumstances shock the judicial conscience of the Court.

Condonation of delay is a matter of judicial discretion,
which must be exercised judiciously and reasonably in
the facts and circumstances of a case. It will depend upon
the breach of fundamental rights, and the remedy
claimed, and when and how the delay arose. There is no
period of limitation prescribed for the courts to exercise
their constitutional jurisdiction to do substantial justice.
12.13. In a case where the demand for justice is so
compelling, a constitutional Court would exercise its

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jurisdiction with a view to promote justice, and not defeat
it.

12.14. In Tukaram Kana Joshi & Ors. v. M.I.D.C. &

.

Ors.,10 this Court while dealing with a similar fact

situation, held as follows : “There are authorities which
state that delay and laches extinguish the right to put
forth a claim. Most of these authorities pertain to service

jurisprudence, grant of compensation for a wrong done to
them decades ago, recovery of statutory dues, claim for

of
educational facilities and other categories of similar cases,
etc. Though, it is true that there are a few authorities that
lay down that delay and laches debar a citizen from
rt
seeking remedy, even if his fundamental right has been
violated, under Article 9 P.S. Sadasivaswamy v. State of

T.N. (1975) 1 SCC 152. 10 (2013) 1 SCC 353. 32 or 226 of
the Constitution, the case at hand deals with a different
scenario altogether. Functionaries of the State took over

possession of the land belonging to the Appellants without
any sanction of law. The Appellants had asked
repeatedly for grant of the benefit of compensation. The

State must either comply with the procedure laid down for

acquisition, or requisition, or any other permissible
statutory mode.” (emphasis supplied)

13. In the present case, the Appellant being an illiterate
person, who is a widow coming from a rural area has
been deprived of her private property by the State without
resorting to the procedure prescribed by law. The
Appellant has been divested of her right to property
without being paid any compensation whatsoever for over
half a century. The cause of action in the present case is a
continuing one, since the Appellant was compulsorily
expropriated of her property in 1967 without legal
sanction or following due process of law. The present case

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is one where the demand for justice is so compelling since
the State has admitted that the land was taken over
without initiating acquisition proceedings, or any

.

procedure known to law. We exercise our extraordinary

jurisdiction under Articles 136 and 142 of the
Constitution, and direct the State to pay compensation to
the appellant.

18. To the similar effect, the Hon’ble Apex Court in

of
(2022) 7 SCC 508 titled as Sukh Dutt Ratra and another vs.

State of H.P. and others has held as under:

rt
“14. It is the cardinal principle of the rule of law, that
nobody can be deprived of liberty or property without due

process, or authorization of law. The recognition of this
dates back to the 1700s to the decision of the King’s
Bench in Entick v. Carrington17 and by this court in Wazir

Chand v. The State of Himachal Pradesh18. Further, in
several judgments, this court has repeatedly held that

rather than enjoying a wider bandwidth of lenience, the
State often has a higher responsibility in demonstrating

that it has acted within the confines of legality, and
therefore, not tarnished the basic principle of the rule of

law.

15. When it comes to the subject of private property, this
court has upheld the high threshold of legality that must
be met, to dispossess an individual of their property, and
even more so when done by the State. In Bishandas v.

State of Punjab19 this court rejected the contention that
the petitioners in the case were trespassers and could be
removed by an executive order, and instead concluded
that the executive action taken by the State and its
officers, was destructive of the basic principle of the rule

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of law. This court, in another case – State of Uttar Pradesh
and Ors. v. Dharmander Prasad Singh and Ors. 20, held:

“A lessor, with the best of title, has no right to resume

.

possession extra-judicially by use of force, from a lessee,

even after the expiry or earlier termination of the lease by
forfeiture or otherwise. The use of the expression ‘re-entry’
in the lease-deed does not authorise extrajudicial methods

to resume possession. Under law, the possession of a
lessee, even after the expiry or its earlier termination is

of
juridical possession and forcible dispossession is
prohibited; a lessee cannot be dispossessed otherwise
than in due course of law. In the present case, the fact
rt
that the lessor is the State does not place it in any higher
or better position. On the contrary, it is under an

additional inhibition stemming from the requirement that
all actions of Government and Governmental authorities
should have a ‘legal pedigree'”.

16. Given the important protection extended to an
individual vis-a-vis their private property (embodied
earlier in Article 31, and now as a constitutional right in

Article 300-A), and the high threshold the State must meet

while acquiring land, the question remains – can the
State, merely on the ground of delay and laches, evade its

legal responsibility towards those from whom private
property has been expropriated? In these facts and
circumstances, we find this conclusion to be unacceptable,
and warranting intervention on the grounds of equity and
fairness.

17. When seen holistically, it is apparent that the State’s
actions, or lack thereof, have in fact compounded the
injustice meted out to the appellants and compelled them
to approach this court, albeit belatedly. The initiation of
acquisition proceedings initially in the 1990s occurred

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only at the behest of the High Court. Even after such
judicial intervention, the State continued to only extend
the benefit of the court’s directions to those who

.

specifically approached the courts. The State’s

lackadaisical conduct is discernible from this action of
initiating acquisition proceedings selectively, only in
respect to the lands of those writ petitioners who had

approached the court in earlier proceedings, and not other
land owners, pursuant to the orders dated 23.04.2007 (in

of
CWP No. 1192/2004) and 20.12.2013 (in CWP No.
1356/2010) respectively. In this manner, at every stage,
the State sought to shirk its responsibility of acquiring
rt
land required for public use in the manner prescribed by
law.

18. There is a welter of precedents on delay and laches
which conclude either way – as contended by both sides
in the present dispute – however, the specific factual

matrix compels this court to weigh in favour of the
appellant-land owners. The State cannot shield itself
behind the ground of delay and laches in such a situation;

there cannot be a ‘limitation’ to doing justice. This court in

a much earlier case – Maharashtra State Road Transport
Corporation v. Balwant Regular Motor Service, held:

’11……”Now the doctrine of laches in Courts of
Equity is not an arbitrary or a technical doctrine.
Where it would be practically unjust to give a
remedy, either because the party has, by his
conduct, done that which might fairly be regarded
as equivalent to a waiver of it, or where by his
conduct and neglect he has, though perhaps not
waiving that remedy, yet put the other party in a
situation in which it would not be reasonable to
place him if the remedy were afterwards to be

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asserted in either of these cases, lapse of time and
delay are most material.

But in every case, if an argument against

.

relief, which otherwise would be just, is founded

upon mere delay, that delay of course not
amounting to a bar by any statute of limitations, the
validity of that defence must be tried upon

principles substantially equitable. Two
circumstances, always important in such cases,

of
are, the length of the delay and the nature of the
acts done during the interval, which might affect
either party and cause a balance of justice or
rt
injustice in taking the one course or the other, so far
as relates to the remedy.”

19. The facts of the present case reveal that the
State has, in a clandestine and arbitrary manner,
actively tried to limit disbursal of compensation as

required by law, only to those for which it was
specifically prodded by the courts, rather than to all
those who are entitled. This arbitrary action, which

is also violative of the appellants’ prevailing Article

31 right (at the time of cause of action), undoubtedly
warranted consideration, and intervention by the

High Court, under its Article 226 jurisdiction. This
court, in Manohar (supra) – a similar case where the
name of the aggrieved had been deleted from
revenue records leading to his dispossession from
the land without payment of compensation – held:

6″Having heard the learned counsel for the
appellants, we are satisfied that the case projected
before the court by the appellants is utterly
untenable and not worthy of emanating from any
State which professes the least regard to being a

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welfare State. When we pointed out to the learned
counsel that, at this stage at least, the State should
be gracious enough to accept its mistake and

.

promptly pay the compensation to the respondent,

the State has taken an intractable attitude and
persisted in opposing what appears to be a just and
reasonable claim of the respondent.

Ours is a constitutional democracy and the
rights available to the citizens are declared by the

of
Constitution. Although Article 19(1)(f) was deleted
by the Forty-fourth Amendment to the Constitution,
Article 300-A has been placed in the Constitution,
rt
which reads as follows: “300-A. Persons not to be
deprived of property save by authority of law.–No

person shall be deprived of his property save by
authority of law.” 8.This is a case where we find
utter lack of legal authority for deprivation of the

respondent’s property by the appellants who are
State authorities. In our view, this case was an
eminently fit one for exercising the writ jurisdiction

of the High Court under Article 226 of the

Constitution…

20. Again, in Tukaram Kana Joshi (supra) while

dealing with a similar fact situation, this court held
as follows: (SCC p. 359 para11)
“11”There are authorities which state that delay
and laches extinguish the right to put forth a claim.

Most of these authorities pertain to service
jurisprudence, grant of compensation for a wrong
done to them decades ago, recovery of statutory
dues, claim for educational facilities and other
categories of similar cases, etc. Though, it is true
that there are a few authorities that lay down that

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delay and laches debar a citizen from seeking
remedy, even if his fundamental right has been
violated, under Article 32 or 226 of the Constitution,

.

the case at hand deals with a different scenario

altogether. The functionaries of the State took over
possession of the land belonging to the appellants
without any sanction of law. The appellants had

asked repeatedly for grant of the benefit of
compensation. The State must either comply with

of
the procedure laid down for acquisition, or
requisition, or any other permissible statutory
mode.”

rt 21. Having considered the pleadings filed, this court
finds that the contentions raised by the State, do

not inspire confidence and deserve to be rejected.
The State has merely averred to the appellants’
alleged verbal consent or the lack of objection, but

has not placed any material on record to
substantiate this plea. Further, the State was
unable to produce any evidence indicating that the

land of the appellants had been taken over or

acquired in the manner known to law, or that they
had ever paid any compensation. It is pertinent to

note that this was the State’s position, and
subsequent findings of the High Court in 2007 as
well, in the other writ proceedings.”

19. The similar position has been reiterated and relied

upon in the judgment of the Hon’ble Apex Court by the Hon’ble

Division Bench of this Court in CWP No. 491 of 2022, titled as

Sakuntla Devi and another vs. State of Himachal Pradesh

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& another dated 20.10.2023. After relying upon the judgment

of the Apex Court in Vidya Devi & Sukh Dutt Ratra‘s case, the

Court held as follows:

.

“7. In the aforesaid judgments, Hon’ble Apex Court has
categorically held that contention advanced by the State

of delay and laches of the appellant in moving the Court is
liable to be rejected especially when it is not in dispute
that petitioner are suffering continuous loss coupled with

of
the fact that they repeatedly requested the authorities to
initiate acquisition proceedings.

8. If the aforesaid judgments are read in their entirety, it
rt
clearly emerges that land owners cannot be deprived of
their land, without following due process of law. If it is so,

ground raised by the respondents that petitioners have
made their land available with consent, is of no
consequence rather, this court, having taken note of the

fact that the land of petitioners stands utilized for the
construction of road in question, is compelled to agree

with the submission of learned counsel for the petitioners
that her clients are entitled for compensation qua the land

utilized by respondents for construction of road in
question.

10. Admittedly, land of the petitioners stands utilized for
construction of road but till date, they have not been paid
any amount, which action of the respondent-State
certainly amounts to forcible dispossession of the
petitioners from their land, which is violative of provision
contained under Art. 300-A of the Constitution of India.

14. In case titled, State of Himachal Pradesh v. Umed
Ram Sharma (1986) 2 SCC 68, Hon’ble Apex Court has
held that entire State of Himachal Pradesh is a hilly area
and without workable roads, no communication is

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-21-

possible; every person is entitled to life as enjoined in
Article 21 of the Constitution of India; every person has
right under Article 19 (1) (b) of the Constitution of India to

.

move freely, throughout the territory of India; for the

residents of hilly areas, access to road is access to life
itself. Stand taken by the respondents that there was a
policy for providing roads on demand of residents as a

favour to them on conditions that they would not claim
compensation, cannot be sustained because such stand is

of
violative of Article 300A of the Constitution of India.

15. In case titled Hari Krishna Mandir Trust v. State of
Maharashtra and others, 2020 9 SCC 356, Hon’ble Apex
rt
Court has held that though right to property is not a
fundamental right, but it is still a constitutional right

under Article 300A of the Constitution of India and also a
human right; in view of the mandate of Article 300A, no
person can be deprived of his property save by the

authority of law. No doubt, State possesses the power to
take or control the property of the owner of the land for
the benefit of public, but at the same time, it is obliged to

compensate the injury by making just compensation.”

20. The Courts below, after appreciating the oral as well

as documentary evidence placed on record and on the basis of

the title, decreed the suit as filed by the respondents and have

rightly came to the conclusion that they are entitled for

mandatory injunction with the direction to acquire the portion

of the suit land which has been utilized by the present

appellants for the construction of the road.

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-22-

21. The Hon’ble Apex Court has repeatedly held that no

person can be deprived of his property without adopting due

process of law, therefore, under such circumstances, the plea

.

as set up by the appellants-State is not tenable in the facts and

circumstances of the case, once they have utilized the land of

the villagers without adopting due process of law. Now the plea

of
as raised by the present appellants is not permissible that too

at the stage of Regular Second Appeal. There are concurrent

findings of fact by the Courts below.

rt

22. The Hon’ble Supreme Court in catena of judgments

has held that the first appellate is the final court of the fact. No

doubt, second appellate court exercising the power under

Section 100 CPC can interference with the findings of fact on

limited grounds such as – (a) where the finding is based on

inadmissible evidence; (b) where it is in ignorance of the

relevant admissible evidence; (c) where it is based on

misreading of evidence; (d) where it is perverse, but that is not

case in hand.

23. The Hon’ble Supreme Court while dealing with scope

of interference under Section 100 in Hero Vinoth (minor) vs.

Seshammal, (2006) 5 SCC 545 has held as under:

“18. It has been noted time and again that without
insisting for the statement of such a substantial question
of law in the memorandum of appeal and formulating the

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-23-

same at the time of admission, the High Courts have been
issuing notices and generally deciding the second appeals
without adhering to the procedure prescribed under

.

Section 100 of the CPC. It has further been found in a

number of cases that no efforts are made to distinguish
between a question of law and a substantial question of
law. In exercise of the powers under this section in

several cases, the findings of fact of the first appellate
court are found to have been disturbed. It has to be kept

of
in mind that the right of appeal is neither a natural nor an
inherent right attached to the litigation. Being a
substantive statutory right, it has to be regulated in
rt
accordance with law in force at the relevant time. The
conditions mentioned in the section must be strictly

fulfilled before a second appeal can be maintained and no
court has the power to add or to enlarge those grounds.
The second appeal cannot be decided on merely equitable

grounds. The concurrent findings of facts will not be
disturbed by the High Court in exercise of the powers
under this section. Further, a substantial question of law

has to be distinguished from a substantial question of

fact. This Court in Sir Chunilal V. Mehta and Sons Ltd. v.
Century Spg. & Mfg. Co. Ltd. (AIR 1962 SC 1314) held

that : “The proper test for determining whether a question
of law raised in the case is substantial would, in our
opinion, be whether it is of general public importance or
whether it directly and substantially affects the rights of
the parties and if so whether it is either an open question
in the sense that it is not finally settled by this Court or by
the Privy Council or by the Federal Court or is not free
from difficulty or calls for discussion of alternative views.
If the question is settled by the highest court or the
general principles to be applied in determining the

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-24-

question are well settled and there is a mere question of
applying those principles or that the plea raised is
palpably absurd the question would not be a substantial

.

question of law.

” 19. It is not within the domain of the High Court to
investigate the grounds on which the findings were
arrived at, by the last court of fact, being the first

appellate court. It is true that the lower appellate court
should not ordinarily reject witnesses accepted by the

of
trial court in respect of credibility but even where it has
rejected the witnesses accepted by the trial court, the
same is no ground for interference in second appeal when
rt
it is found that the appellate court has given satisfactory
reasons for doing so. In a case where from a given set of

circumstances two inferences of fact are possible, one
drawn by the lower appellate court will not be interfered
by the High Court in second appeal. Adopting any other

approach is not permissible. The High Court will, however,
interfere where it is found that the conclusions drawn by
the lower appellate court were erroneous being contrary to

the mandatory provisions of law applicable or its settled

position on the basis of pronouncements made by the
Apex Court, or was based upon inadmissible evidence or

arrived at by ignoring material evidence.

20. to 22 xx xx xx xx

23. To be “substantial” a question of law must be
debatable, not previously settled by law of the land or a
binding precedent, and must have a material bearing on
the decision of the case, if answered either way, insofar
as the rights of the parties before it are concerned. To be a
question of law “involving in the case” there must be first
a foundation for it laid in the pleadings and the question
should emerge from the sustainable findings of fact

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-25-

arrived at by court of facts and it must be necessary to
decide that question of law for a just and proper decision
of the case. An entirely new point raised for the first time

.

before the High Court is not a question involved in the

case unless it goes to the root of the matter. It will,
therefore, depend on the facts and circumstance of each
case whether a question of law is a substantial one and

involved in the case, or not; the paramount overall
consideration being the need for striking a judicious

of
balance between the indispensable obligation to do justice
at all stages and impelling necessity of avoiding
prolongation in the life of any lis.”

24.
rt
The Hon’ble Supreme Court in Annamalai vs.

Vasanthi, 2025 INSC 1267, has held as follows:-

“16. Whether D-1 and D-2 were able to discharge the

aforesaid burden is a question of fact which had to be
determined by a court of fact after appreciating the
evidence available on record. Under CPC, a first appellate

court is the final court of fact. No doubt, a second

appellate court exercising power(s) under Section 100 CPC
can interfere with a finding of fact on limited grounds,
such as, (a) where the finding is based on inadmissible

evidence; (b) where it is in ignorance of relevant
admissible evidence; (c) where it is based on misreading
of evidence; and (d) where it is perverse. But that is not
the case here.

17. In the case on hand, the first appellate court, in
paragraph 29 of its judgment, accepted the endorsement
(Exb. A-2) made on the back of a registered document
(Exb. A-1) after considering the oral evidence led by the
plaintiff-appellant and the circumstance that

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-26-

signature(s)/thumbmark of D-1 and D-2 were not
disputed, though claimed as one obtained on a blank
paper. The reasoning of the first appellate court in

.

paragraph 29 of its judgment was not addressed by the

High Court. In fact, the High Court, in one line, on a flimsy
defense of use of a signed blank paper, observed that
genuineness of Exb. A-2 is not proved. In our view, the

High Court fell in error here. While exercising powers
under Section 100 CPC, it ought not to have interfered

of
with the finding of fact returned by the first appellate
court on this aspect; more so, when the first appellate
court had drawn its conclusion after appreciating the
rt
evidence available on record as also the circumstance that
signature(s)/thumbmark(s) appearing on the document

(Exb.A2) were not disputed. Otherwise also, while
disturbing the finding of the first appellate court, the High
Court did not hold that the finding returned by the first

appellate court is based on a misreading of evidence, or is
in ignorance of relevant evidence, or is perverse. Thus,
there existed no occasion for the High Court, exercising

power under Section 100 CPC, to interfere with the finding

of the first appellate court regarding payment of
additional Rs. 1,95,000 to D-1 and D-2 over and above

the sale consideration fixed for the transaction. 18. Once
the finding regarding payment of additional sum of
Rs.1,95,000 to D-1 and D-2 recorded by the first appellate
court is sustained, there appears no logical reason to hold
that the plaintiff (Annamalai) was not ready and willing to
perform its part under the contract particularly when Rs.
4,70,000, out of total consideration of Rs. 4,80,000, was
already paid and, over and above that, additional sum of
Rs.1,95,000 was paid in lieu of demand made by D-1 &
D-2. This we say so, because an opinion regarding

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-27-

plaintiff’s readiness and willingness to perform its part
under the contract is to be formed on the entirety of
proven facts and circumstances of a case including

.

conduct of the parties. The test is that the person claiming

performance must satisfy conscience of the court that he
has treated the contract subsisting with preparedness to
fulfill his obligation and accept performance when the

time for performance arrives.”

of

25. No other point was raised by the learned counsel for

the parties.

26. No question of law much less substantial
rt
question of law arises in the present appeal.

27. Consequently, the present appeal being devoid of

any merit is dismissed. No order as to the costs. Pending

applications, if any, also stand disposed of.

28. Decree sheet be prepared accordingly.

(Romesh Verma)

Judge

9th April, 2026.

(kck)

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